Citation NR: 9700560
Decision Date: 01/13/97 Archive Date: 02/03/97
DOCKET NO. 94-45 645 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Entitlement to an increased evaluation for major
depression, currently evaluated at 50 percent disabling.
2. Entitlement to an increased evaluation for bilateral L5
spondylolysis with grade I spondylolisthesis, L5 on S1,
currently evaluated at 20 percent disabling.
3. Entitlement to an increased evaluation for neck pain with
cervical radiculopathy, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
C. L. Krasinski, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1977 to June
1991.
This matter came before the Board of Veterans’ Appeals (the
Board) on appeal from an October 1991 rating decision of the
Department of Veterans Affairs (VA), Washington, D.C.
Regional Office (RO), which granted service connection for
major depression; bilateral L5 spondylolysis with grade I
spondylolisthesis, L5 on S1; and for neck pain with cervical
(C6) radiculopathy. A 10 percent disability evaluation was
assigned for each disability, effective from June 25, 1991.
The veteran appealed the October 1991 rating decision.
A July 1994 rating decision assigned separate 20 percent
ratings for the veteran’s low back and neck disabilities,
effective from June 25, 1991. A temporary total evaluation
was assigned for major depression pursuant to 38 C.F.R.
§ 4.29 (1992) effective from July 6, 1992. A 50 percent
schedular evaluation was assigned, effective from August 1,
1992.
The July 1994 rating denied service connection for impotence
as secondary to the bilateral L5 spondylolysis with grade I
spondylolisthesis, L5 on S1. This matter was addressed in a
supplemental statement of the case in August 1994, but there
is no record of a timely filed substantive appeal with
respect to this issue and it has not been certified for
appeal. For this reason, the matter is not the subject of
appellate review.
REMAND
The veteran and his wife testified that the veteran receives
ongoing psychotherapy from the Washington, D.C., VA Medical
Center (MC) on a monthly basis. The Board notes that,
subsequent to the veteran’s most recent VA examination in
September 1992 and the RO’s assignment of a 50 percent
disability evaluation for major depression in July 1994, the
pertinent rating criteria for mental disorders were revised
by the VA. The revised regulations were effective on
November 7, 1996. The RO has not yet had the opportunity to
evaluate the veteran’s service-connected major depression
pursuant to the provisions of the new regulations.
Where a law or regulation changes after a claim has been
filed or reopened, but before the administrative or judicial
appeal process has been concluded, the version most favorable
to an appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so. Marcoux v. Brown, 9 Vet.App. 289 (1996); Karnas v.
Derwinski, 1 Vet.App. 308 (1991). Thus, the veteran’s
psychiatric disorder must be evaluated under both the old and
the new rating criteria to determine which version is most
favorable to the veteran. Review of the rating actions
indicates that the evidence has not been evaluated under
amended criteria.
Review of the record reveals that the veteran was afforded a
VA examination in November 1993. The range of motion of the
veteran’s lumbar spine and cervical spine was reported, but
the VA examiner did not indicate whether the veteran
experienced functional loss due to pain caused by the
service-connected back and neck disabilities. The veteran
was diagnosed as having cervical spine radiculopathy and
mechanical low back pain with chronic pain syndrome. The VA
examiner recommended a neurological examination. It does not
appear that such examination was performed.
The VA has a duty to assist the veteran in the development of
facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a)
(West 1991 & Supp. 1995); 38 C.F.R. § 3.103(a) (1995). This
duty includes providing a complete and thorough medical
examination of the claimed disability that takes into account
the records of the veteran’s prior medical treatment, so that
the evaluation of the claimed disability will be a fully
informed one. Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
The duty to assist also includes providing an examination by
a specialist when deemed appropriate. Littke v. Derwinski, 1
Vet.App. 90 (1990). Where the law or regulation changes
after a claim has been filed, but before the administrative
or judicial appeal process has been concluded, the version
most favorable to the appellant will apply. Karnas v.
Derwinski, 1 Vet.App. 308 (1991).
The Board concludes that in order to fairly adjudicate the
veteran’s claim for an increased rating for major depression,
another VA psychiatric examination is necessary. Because the
pertinent regulations were revised subsequent to the
veteran’s most recent VA examination, a new VA examination is
needed so that the revised rating criteria is taken into
account and the examination findings are related to the new
rating criteria. The Board also finds that an assessment of
whether, and to what extent, the veteran experiences
functional loss due to his service-connected back and neck
disabilities is pertinent to the veteran’s claims. The
medical examination should assess weakened movement, excess
fatigability, incoordination, and pain on movement, in
addition to limitation of motion of the veteran’s lumbar
spine and cervical spine, that is caused by the veteran’s
service-connected back and neck disabilities. DeLuca v.
Brown, 6 Vet.App. 321, 324 (1993).
Accordingly, the case is REMANDED for the following actions:
1. The Washington, D.C. VAMC should be
asked by the RO for copies of the
veteran's clinical records dated from
1992 to present. Any records obtained
should be associated with the claims
folder.
2. The RO should schedule the veteran
for a VA psychiatric examination, in
order to determine the extent of the
service-connected major depression. All
necessary tests and studies should be
conducted in order to identify and
describe the symptomatology attributable
to the major depression. The report of
examination should contain a detailed
account of all manifestations of the
disability(ies) found to be present. If
there are found to be psychiatric
disorder(s) other than major depression,
the examiner should reconcile the
diagnoses and should specify which
symptoms are associated with each of the
disorder(s). If certain symptomatology
cannot be disassociated from one disorder
or the other, it should be so specified.
The examiner should also comment on the
extent to which the major depression
affects occupational and social
functioning. A multi-axial assessment
should be conducted, and a thorough
discussion of Axis IV (psychosocial and
environmental problems) and Axis V
(Global Assessment of Functioning (GAF)
score), with an explanation of the
numeric code assigned, is to be included.
The claims folder and a copy of this
remand should be made available to the
examiner for review in conjunction with
the examination.
3. The veteran should be afforded VA
orthopedic and neurological examinations
in order to determine the nature and
extent of the veteran’s service-connected
bilateral L5 spondylolysis with grade I
spondylolisthesis, L5 on S1, and the
service-connected neck pain with C6
radiculopathy. The claims folder and a
copy of this remand should be made
available to the examiner for review
prior to the examination. The examiner
should record pertinent medical
complaints, symptoms, and clinical
findings, including specifically active
and passive range of motion, and comment
on the functional limitations, if any,
caused by the veteran’s service-connected
back and neck disabilities. With respect
to the subjective complaints of pain, the
examiner is requested to specifically
comment on whether pain is visibly
manifested on movement of the joints,
whether muscle atrophy attributable to
the service-connected disabilities is
present, whether changes in the condition
of the skin that are indicative of disuse
due to the service-connected disabilities
are present, and whether any other
objective manifestation that would
demonstrate disuse or functional
impairment due to pain attributable to
the service-connected disabilities are
present.
4. Following completion of the foregoing
examinations, the RO should review the
examination reports and assure that all
requested information has been provided.
If not, the examination should be
returned as inadequate for rating
purposes. 38 C.F.R. § 4.2 (1995).
5. When the RO is satisfied that the
record is complete and the examinations
are adequate for rating purposes, the RO
should readjudicate the veteran’s claims.
Consideration of a higher psychiatric
rating should be made under the old and
new criteria for Diagnostic Code 9207.
Consideration should be given to the
provisions contained in 38 C.F.R.
§§ 4.40, 4.45 and 4.59 (1995) when
readjudicating the veteran’s claims for
increased ratings for the neck and back
disabilities.
After the above has been completed, if any benefit sought
remains denied, the veteran and his representative should be
issued a supplemental statement of the case, which includes
the appropriate laws and regulations and adequate reasons and
bases for the RO's decision. The veteran and his
representative, thereafter, should be afforded an opportunity
to respond. The case must then be returned to the Board for
further appellate consideration, if appropriate. The veteran
and his representative need take no further action until
notified by the RO.
The purpose of this remand is to assist the veteran in the
development of his claim and to afford the veteran due
process of law.
THOMAS J. DANNAHER
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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